Chhote Lal And Ors. vs Government Of India And Ors.
1995 Latest Caselaw 71 Del

JUDGMENT

K. Shivashankar Bhat, J.

(1) The petitioners were appointed as Research Associates in terms of a scheme formulated by Indian Council of AgriculturalResearch. The scheme is referred as 'General Guidelines for the formulation,processing, scrutiny, sanction, implementation and evaluation of research schemes to be financed by the Indian Council of Agricultural Research from its agricultural produce cess funds. Para 16 of this scheme states that "a Research Associate shall be selected by a Selection Committee to be constituted by the Principal Investigator or the University/Institution in accordance with Rules in existence there, or by the Management Committee in case of ICAR institute. The appointment will not be a regular employment, but restricted in the duration of the project/scheme".

(2) Initially the petitioners were appointed somewhere in the year 1986 and1987. There were similar other appointees as well at different places. When there was a proposal or actual action terminating the services of these Research Associates writ petitions were filed in Allahabad High Court and ultimately the matter came up before the Supreme Court in Special Leave Petition (Civil) No. 9865-1971 /1991. The Supreme Court allowed the petition. The Supreme Court pointed out that once someone is inducted into a research project in any of the three categories there can be no justification to keep him out before the project is completed except in cases of inefficiency or indiscipline. The Supreme Court directed that all the three categories of the people associated with the research programmes should have employment co-terminus with the projects.

(3) Subsequently, the petitioners were re-employed following the aforesaid order of the Supreme Court. However, in January, 1993 the Project Director of the ICAR wrote to the G.B. Pant University which is the third respondent here stating that "THE8th plan proposal of cropping systems research project has been approved by the Planning Commission. The number of main and sub-centers of cropping systems research and on farm units approved for each Agricultural University during Viii Plan is endorsed (Annexure-I). The Council has made certain changes in staff position provided at main centres and on-farm units as indicated in Annexure-II. These changes will come into effect from 1/04/1993. I request you to take necessary action to redeploys the surplus staff in the university. You are also requested to take necessary action to fold up the activities of the centres decided to be closed."

(4) ANNEXURE-I gave the existing and approved centres in different Universities/Organisations. As against the third respondent University at Pant Nagaragainst the existing main centre, sub-center and on-farm unit approved during 8thplan gave the figures one against the main centre and one against the on-farm unit omitting the sub-center, while earlier under on-farm unit two units were permitted.Annexure-II to this letter gave the details of staff position. I find no reference to these Research Associates in this Annexure-II. The third respondent University thought it fit to terminate the services of the petitioners and others on the ground of the respective units being closed. The impugned orders of termination stated that as per the letter of the Project Director dated 28.1.1993 some posts in the 8th five year plan have been curtailed and there is a reference also to another letter of the Project Director dated March 10/15, 1993 about closing down of the unit of cropping system project working at Ghaziabad. Thereafter there is some reference to the High Court's order (which obviously should have been the Supreme Courtorder) and the meeting held by the Managing Council and then states that the services of the.petitioners were terminated w.e.f. 31.3.1993. The petitioners question this order of termination on several grounds. Mainly it was contended that even though the unit might have been closed the project is still not completed and the Research Associates are still necessary to complete the project and having regard to the scheme formulated by the ICAR referred already, the petitioners are entitled to be continued in service. The petitioners also rely on the decision of the Supreme Court referred earlier. Petitioners further contend that out of 25 Research Associates, 22 have been ether re-employed or provided employment in different organizations and only these three petitioners are deprived of the benefit of the continuous employment.

(5) The learned Counsel for the third respondent raised a preliminary objection about the maintainability of the writ petition before this Court. The learned Counsel pointed out that the appointments were made by the third respondent outside the territorial jurisdiction of this Court and the petitioners were also working outside the territorial jurisdiction and therefore, this writ petition is not maintainable.

(6) No doubt the argument looks to be quite attractive and I would have ventured to consider the same in greater detail but for the fact that I do not find any such contention having been raised in the reply to the show cause notice issued by this Court. Notice was issued to the respondents on 7.7.1993. The matter was pending at the notice stage for a considerable time and the rule was issued only on23.11.1993. In between these dates the writ petition came up before the Bench on several occasions. It is only after hearing the respondents that the rule was issued by this Court. The object of issuing a notice regarding rule is basically to find out whether the petitioner has any other effective remedy available to the petitioner or whether the cause of action arose within the jurisdiction of this Court or whether the impugned order could be rectified by this Court on getting clarification from the contesting respondents and such other allied matters. In Nagendrappa v. State of Kerala, Ilr 1993 Karnataka 2361,1 had an occasion to observe as to when notice regarding Rule should be issued and as to when Rule is to be issued. At page 2365, it was held - "I am of the view that whenever a prima fade case is made out by the petitioner, normal rule is to issue Rule Nisi. Exceptional circumstances, under which, notice re: Rule to be issued are, (i) doubt as to the locus standi of the petitioner; (ii) doubt as to the availability of an alternative remedy; (iii)need to consider the delay in approaching the Court; (iv) likelihood of some bar against considering the petitioner's case; (v) possibility of disposing off the case without a pleading or statement of objections on the part of the respondent; (vi) cases involving judicial clarifications of a particular situation, without much contest between the parties, and (vii) such other similarmatters, depending upon the circumstances of a case."

If the respondents failed to raise this plea at the earliest point of time it shall have to be held that the respondent abandoned the plea or at any rate this Court may or may not permit the respondent to raise this plea depending upon the circumstances of each case. Even after the issuance of Rule the plea regarding the non-maintainability of the writ petition before this Court was not raised by the respondents. According to the learned (counsel for the petitioner a part of the cause of action arose within the territorial jurisdiction of this Court because the appointments were made on the basis of the scheme formulated by the second respondent which is situated in New Delhi and the finance mainly flows to the third respondent University from respondents 1 & 2. The learned Counsel for the petitioner also relied on the letter of the Project Director dated 28.1.1993, which I have already quoted above, which requests the third respondent to take necessary action to redeploys the surplus staff in the University.

(7) It is true that the question of jurisdiction goes to the root of the matter and can be raised at any stage of the litigation but still I am of the view that there is a discretion in the Court whether to permit a contesting respondent to raise such a plea or not to permit and I am of the view that this is not a case to permit the respondent to raise this plea nearly 19 months after the issuance of notice of the writpetition.

(8) The basic question is whether para 16 of the scheme formulated by the second respondent still operates in the case of the petitioners. In this connection the averments made in the writ petition shall have to be referred. The petitioners assert in the writ petition as follows:- "THAT a bare reading of the letter dated 28/01/1993 issued by Indian Council of Agricultural Research, New Delhi, order dated 26.7.1977 passed by the Hon'ble Supreme Court of India and the report submitted by the Head of the Department dated 19/03/1993 will make it obvious that in fact the sub-project initiated at Ghaziabad/ Bijnor districts was never founded but infact the work assigned to this project was shifted/transferred to another sub-project which was in existence earlier and all the employees were directed to be adjusted in another project at main campus. Pant Nagar, U.P.It is submitted that as per the recommendation made by Indian Council of Agricultural Research, New Delhi in its letter dated 28/01/1993 and as per the direction given by the Hon'ble Supreme Court of India and as per the recommendations made by the Head of the Department in its report dated 19/03/1993, the Vice Chancellor of G.B. Pant University constituted under the Chairmanship of Dean, New Education (Chairman) consisting of Head of the Department, Senior Scientist, Director Research, Comptroller,Establishment Officer and Chief Personnel Officer. The Committee gave its report on 24.4.1993 and made a recommendation that all the employees working at Ghaziabad/Bijnor sub-center may be accommodated in other projects which were in existence at different places. On the basis of therecommendation of the Committee and on the basis of the aforesaid letter issued by Indian Council of Agricultural Research, New Delhi and the report submitted by the Head of the Department and the direction given by theHon'ble Supreme Court of India in its order dated 26.7.1991, about25 persons have been accommodated in different projects, however, the petitioners who are 3 in numbers have been arbitrarily and discriminately denied of their rights to be accommodated and their services have been terminated only on the suggestion of Vice Chancellor of G.B. Pant University."

(9) In the reply to the notice filed on behalf of third respondent the basic facts are not specifically denied. Para 10 of the reply to the show cause notice refers tothe averments found in paras 6,7 & 8 in the writ petition. The reply is quite vague.These relevant averments in the writ petition are brushed aside as irrelevant.Nowhere it is stated that the projects are not in existence. If the basic fact that the Project continues to exist is found in favor of the petitioner, then there can be no doubt that they are entitled to be continued in service having regard to para 16 of the scheme framed by ICAR. On the short ground I am of the view that the petitioners are entitled to succeed.

(10) This apart, the petitioners have pointed out that the Committee appointed by the third respondent recommended their employment by the University by adjusting the appointments. The petitioners have filed the relevant report of the Committee as Annexure 'D'. This report refers to the petitioners as well as others.The recommendation is made by the Senior Scientist of the second respondent(ICAR). This report recommends the transfer of the petitioner by transfer or byadjustment. The petitioners also have filed the orders dated 6.10.1993 and25.5.1993 whereunder several similar Research Associates have been continued on the basis of the recommendations of the Committee.

(11) It is undisputed that 22 out of 25 Research Associates have been thus continued in service and the three petitioners were quite unfortunate in not getting lease of further service life. The petitioners also have pointed out that some of their juniors have been re-employed or continue in service.

(12) On the basis of this assertion there could be no doubt that the petitioners have been discriminated in the matter of employment. Denial of employment to them certainly is discriminatory and shall have to the considered as arbitrary.

(13) Petitioners are not in service and there was no interim order in theirfavor. Mr. Garg, the learned Counsel for the petitioner fairly submitted that the petitioners could not be claiming benefit of any salary for the period of their unemployment till today.

(14) The learned Counsel for the third respondent however, submitted that any direction by this Court to continue the service of petitioners would affect the respondent University financially.

(15) The submission of the learned Counsel for the third respondent is not only the problem in law but the practical problem faced by the respondent University.I have no doubt that the respondents 1 & 2 would come forward to supplement the funds of the third respondent in case the circumstances so require because the continuance of the service of the petitioners shall have to be considered as incompliance with the scheme formulated by the third respondent.

(16) In the result, the writ petition is allowed. Impugned order of termination are set aside. The petitioners are directed to be continued in service by posting them in appropriate service. Further it is clarified that the petitioners need not be paid any salary from the date of their termination till today. Rule made absolute. No costs.